Waightstill & William Waightstill Avery
By Brianne Boykin
The News Herald

As a part of one of the founding families of Burke County, Waightstill Avery and his grandson, William Waightstill Avery, shared several things in common.

Both were lawyers in the up-and-coming county. Both served in political offices. And both spent the most retold moments of their lives staring down the barrel of a pistol.

Waightstill was born May 10, 1741, in Groton, Conn. After graduating Princeton with honors at the age of 25, he studied law in Maryland and moved to North Carolina around 1770.

Living in Charlotte, Waightstill became an integral part of local history before and during the Revolutionary War. He was a member of the Halifax Convention of 1776 when it instructed its delegates to the Continental Congress to vote for independence.

Waightstill also was a delegate to the convention that drafted the state constitution and was appointed the first attorney general of North Carolina under that constitution.

Waightstill and his wife, Leah Probart Franks, settled in Burke County permanently in 1781 moving to Swan Ponds where three of their four children were born. The move made Waightstill the first resident practicing attorney in Burke County.

An act of 1782 created a Morgan, later known as Morganton, Judicial District and specified that the Superior Courts of the District meet “at a courthouse in Burke County.” Waightstill became one of the instrumental players in selecting a courthouse site and establishing a town surrounding the public square.

Waightstill also played a vital role is establishing Morganton’s early education system. While he was serving in the House of Commons from Burke County, an act was passed to incorporate trustees for two schools in the Morgan district. One, named Morgan Academy, was to be in Burke County. Waightstill also was among the trustees designated for the Burke School.

In 1801, Waightstill was thrown from his horse. An injury to his left leg meant he was never again able to walk, yet he still served as a judge of the county court. He died in the judge’s chambers at the courthouse in Morganton on Sept. 30, 1819, and was buried at the family graveyard at Swan Ponds.

Most of these facts are relegated to the dusty history shelves, but Waightstill’s most famous moment, one that could’ve changed the history of the country, has been told in The News Herald, Harper’s Weekly, The Morganton Star, the Asheville Citizen Times and the Hickory Daily Record.

In August 1788, Waightstill and future president of The United States Andrew Jackson found themselves on opposing sides of a court case in what is now Jonesboro, Tenn.

The accounts of the conflict between the two lawyers vary.

One version states that Waightstill quoted extensively from the prestigious

law book of the time, “Bacon’s

Abridgement.” During one of Waightstill’s quotes, Jackson interrupted saying, “I may not know all the law in Bacon, but I know enough not to accept illegal fees.”

Waightstill called Jackson a liar and the challenge was issued by Jackson.

In a second version, it is Jackson who quoted extensively from “Bacon’s Abridgement,” frequently saying during the course of the trial, “Now let’s just see what Bacon has to say about this.” Jackson would then unwrap his copy and dramatically hold it up for all to see.

During the trial however, Waightstill slyly replaced Jackson’s book with a slab of country bacon, cut to the same size and wrapped in the same paper.

When Jackson pulled the package from his saddle bag, the court erupted into laughter.

The Morganton Star published yet a third version on Oct. 15, 1886, in which Jackson replaced Waightstill’s book with the slab of country bacon.

“Avery was a man of great dignity of character and bearing, who could ill brook a liberty of any kind, least of all an attempt to make him appear ridiculous,” The Morganton Star states. “Turning to Jackson, he charged him with what had been done and denounced him for his act in most unmeasured terms.”

Rather than challenge Waightstill to a duel with a slap of a glove, Jackson tore a fly leaf from a law book and wrote the challenge issued to Waightstill.

The challenge was found among Waightstill’s papers after his death, carefully filed away and docketed in a business-like style as “Jackson, D.P. Duel, 1788.”

The challenge states:

“Sir, When a man’s feelings and character are injured he ought to seek a speedy redress; you rec’d a few lines from me yesterday and undoubtedly you understand me. My character you have Injured: and farther you have Insulted me in the presence of a court and a large audience I therefore call upon you as a gentleman to give me satisfaction for the same; and I further call upon you to give me an answer immediately without Equivocation and I hope you can do without dinner until the business done for it is consistent with the character of a gentleman when he Injures a man to make a speedy reparation, therefor I hope you will not fail in meeting me this day, from yr obt st.”

Along the left side of the challenge Jackson wrote, “P.S. this evening after court adjourned.”

The accounts again differ in regards to the duel itself.

An article appearing in The News Herald July 18, 1967, relates one of several accounts stating when the men met to duel, they both fired into the air over each other’s heads.

Jackson and Waightstill shook hands indicating the duel was over. Jackson next handed Avery the bag in which he carried Bacon’s Abridgement saying, “Colonel Avery, I knew that if I hit you and did not kill you immediately, the greatest comfort you could have in your last moments would be to have Bacon’s Abridgement near you and so I had my friend bring it to the ground.”

When Waightstill opened the bag, he pulled out a slab of cured bacon cut to the exact size of a law book.

Another version was retold in The Morganton Star on Oct. 15, 1886.

“The duel was fought about dusk of the day the challenge was given in a ravine near the court house in Jonesboro,” the article states. “Shots were exchanged, but fortunately neither party was hurt. Jackson declared himself satisfied and the two gentlemen afterwards became warm friends.”

An additional version reported in The News Herald on Oct. 20, 1972 states Jackson fired first, just clipping Waightstill’s ear. Waightstill fired into the air and walked over and shook hands with Jackson.

The man at the end of William’s pistol was not as fortunate.

William was born May 25, 1816, to Isaac Thomas Avery, the only son of Waightstill, and Harriet Eloise Erwin.

William graduated the University of North Carolina with the highest honors and gave the valedictory address in 1837.

Following in his grandfather’s footsteps, William chose to study law under Judge William Gaston, then considered to be the greatest lawyer in North Carolina.

Like other law students at the time, William’s licensing wasn’t determined by his length or manner of study. Students received their license if they were certified to be of good behavior and if he passed the bar examination which members of the Supreme Court gave orally.

William became licensed to practice law in 1839 and was a leader of the local bar after 1840.

Regularly appearing before the Morganton Supreme Court session, William quickly became an influence in the continuing growth of Burke County.

William also became active in politics at an early age. He was elected to serve as a representative of Burke County to the state House of Commons in 1842 when he had been practicing law for only three years and was just 26 years old. He served one year and was elected again in 1850 and 1852.

In 1845, William became a trustee of Morganton Academy, the first high school in the county.

Shortly after, William started a family, marrying Mary Corinna Morehead and having five children.

It was in 1851 that William found himself entangled in an event that could have irrevocably changed his bright young life and promising future.

The stirrings of the tragic incident began on Oct. 21 in the courtroom in Marion. William was appearing on behalf of a client indebted to a politician from Yancey County, Sam Fleming.

Collection of the debt had been prevented with a restraining order suggesting the judgement was fraudulent. William, like any good lawyer, defended his client vigorously but witnesses said with less fiery remarks than many other lawyers would have used.

After court adjourned, Fleming confronted William, daring him to repeat the offensive remarks he made in court. William refused and as he walked away, Fleming drew a cowhide whip from his coat and lashed William who tried to fight back with his fists.

But William, described as a small delicately-built man, was no match for Fleming, described as a big rugged mountain man. Fleming knocked William to the ground and beat him about the face and head with a rock.

William knew the code of honor and had little choice but to take drastic action, knowing any attempt to address the issue through the courts would be considered by other men a shirking of his moral duty.

In the following weeks, Morganton buzzed with rumors of the incident and the coming retribution. Among the tales was William’s father, one of his uncles and his brothers had implored him to kill Fleming.

On Nov. 11, Fleming rode into Morganton. He made it certain he was seen about town boasting he wouldn’t take $1,000 for the cowhiding he had given William.

Fleming entered the court after the noon recess and walked past William, almost brushing against him. Next, he approached Nicholas Woodfin, a fellow lawyer from Asheville.

William was sitting 5 feet away but had paid Fleming no attention until this time. He suddenly rose, took a few steps, removed a pistol from his

pocket and fired at Fleming, hitting him just below the ribs. The bullet went through Fleming’s heart, he collapsed and William threw his pistol at the dead man.

District Solicitor Burgess Gaither, William’s uncle, grabbed him by the arm and led him from the courtroom. When Gaither returned he told the court William had surrendered himself to the Sheriff and was in his office. Judge William Horn Battle, who had witnessed the cowhiding in Marion, ordered William to jail and appointed John Woodfin as prosecutor. Nicholas Woodfin and two other lawyers were retained in William’s defense.

When the trial took place two days later, the defense argued the cowhiding had rendered William temporarily insane.

After 10 minutes of deliberation, the jury returned with a verdict of “not guilty.”

Battle later wrote, “The rendering of the verdict was immediately followed by the most deeply affecting scene I have ever witnessed. Not a word was spoken, but almost every person in the courtroom, in silence and tears, went and shook the prisoner by the hand.”

The public was less unanimous in its opinions. Many believed William had no choice but to kill Fleming. Others believed while William had a right to kill Fleming, he should have hanged for it. Many

believed if William had been poor and friendless, he would’ve hanged for the incident.

William suffered personally from Fleming’s death. For several years, he suffered from depression and insomnia, walking the streets late at night as if looking for his lost peace of mind.

William’s political and professional career suffered less.

During the late 1850s, William became one of the most active promoters for a railroad line from Statesville to Morganton. When the time came for railroad building contracts to be issued, William was appointed as one of two directors. Not surprisingly, when the railroad was constructed from Morganton to Swannanoa, two of William’s brothers received a large percentage of those contracts.

William’s political interests continued throughout the remainder of his life. In 1856, he led the delegation from North Carolina to the Democratic National Convention. In that year he was also elected to the state Senate and was chosen speaker. He was re-elected in 1860.

When Abraham Lincoln was re-elected as president, William became determined to succeed from the Union.

North Carolina succeeded on May 20, 1861, and county leaders, including William, backed the Confederacy. William was among the leaders who spoke to volunteers for raising the first Confederate company raised in Burke County.

William was elected as a member of the Confederate Provisional Congress where he served from July 1861 to February 1862.

Regarding the Civil War, Harriet Avery wrote a letter to her sister in January 1833 that proved prophetic, “I should dread a Civil War more than any other evil that could befall us.”

In June 1864 the war was carried into Burke County. Capt. George W. Kirk with 130 men entered Camp Vance, located less than 6 miles from Morganton under a flag of truce and immediately violated it by burning every building except the hospital.

Kirk moved across the county with 277 prisoners. While in Jonas Ridge, local forces moved against Kirk on the Winding Stairs, 21 miles from Morganton.

Kirk, all but one of his men, and 132 of his prisoners escaped, but not before mortally wounding William who was in the front line of the militia.